Indian succession laws provide model for South Africa

Institute of Foreign and Comparative Law
Indian succession laws with special reference to the position of females: a model for South
Africa?
Author(s): Christa Rautenbach
Source: The Comparative and International Law Journal of Southern Africa, Vol. 41, No. 1 (
MARCH 2008), pp. 105-135
Published by: Institute of Foreign and Comparative Law
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Indian succession laws with special
reference to the position of females:
a model for South Africa?
Christa Rautenbach
Abstract
South Africa's dual system of succession laws (the common law of
succession and the customary law of succession) recently came under
scrutiny in Bhe v Magistrate, Khayelitsha (Commission for Gender

Equality as Amicus Curiae); Shibi v Sithole; South African Human Rights
Commission v President of the Republic of South Africa 2005 1 SA 580
(CC) where the customary rule of male primogeniture, amongst others,
was declared to be unconstitutional. The court developed the Intestate
Succession Act 81 of 1987 and in effect unified the common and

customaiy law of succession, with the imperative to develop the
succession laws by means of legislative initiatives. Since the envisaged

statute has not yet been enacted, it is appropriate to compare the legal
position in otherjurisdictions with that of South Africa. Legal academics

tend to compare aspects of the South African legal system with European
and American legal systems and incline to forget the value of other major
legal systems, such as the legal systems of Asia. The history of South
Africa shows remarkable similarities to that of India and, since the

phenomenon of legal pluralism is particularly prevalent there, it would be
worthwhile to compare the succession laws of India in order to determine
whether something similar would benefit South Africa. Besides focusing

on the succession laws of Hindus, Muslims and Jews in general in India,
this article will concentrate on the legal position of women under the
various succession laws in particular.
Professor of Law: North-West

University (Potchefstroom South Africa). The research on
which this article is based
formed part of the author's unpublished LLD thesis and was
made possible by the financial support of the National Research Foundation. However, the
author takes full responsibility for any possible errors and opinions. The author is very
grateful to Werner Menski (SOAS) for his comments on an earlier version of this article.
106 XLI CILSA 2008
GENERAL BACKGROUND
South Africa has a dual system of succession laws: the common law of
succession1 and the customary law of succession.2 Until recently, legislative
initiatives to develop succession laws in South Africa were confined to the
common law. It is especially the common law of intestate succession, which
used to be a 'rather complex legal mosaic',3 which is nowadays set out in the
Intestate Succession Act4 that provides for a much simpler, logical and
equitable approach to this area of law.5
Not much was done to keep the customary law of succession in line with
socio-economic changes and human rights. It has escaped major legislative
reform and was uncodified to a large degree.6 Its application used to be
regulated in terms of the ill-fated Black Administration Act7 in which section

23 prescribed the conditions under which a deceased's estate devolved in
terms of the customary law of succession and when not.8 The succession
rules themselves are uncodified and differ from community to community.
To complicate matters even further, there are officiaf and living (unofficial)
versions of customary succession laws, which usually means that expert
One of the features of the South African legal system is the fact that it is largely uncodified.
Every lawyer knows that he or she has to consult various sources to find the law. These
sources include legislation, precedent, Roman-Dutch law, custom, customary law, modern
legal textbooks and, above all, the Constitution of the Republic of South Africa, 1996
(hereinafter 'the Constitution').
In terms of the Recognition of Customary Marriages Act 120 of 1988 'customary law' is
defined as the 'customs and usages traditionally observed among the indigenous African
people' and in terms of the Black Administration Act 38 of 1927 the term "Black"includes
'any person who is a member of any aboriginal race or tribe of Africa'. The Law of
Evidence Amendment Act 45 of 1988 defines
'indigenous law' as the 'Black labour
customs as applied by the Black tribes in the Republic or in territories which formerly
formed part of the Republic' and the South African Law Reform Commission defines
customary law as the 'various laws observed by communities indigenous to the country'.
Although customary law and indigenous law are used as synonyms in South African law,
the first is preferred, since it is also the expression used in the Constitution.
In the words of Kahn in MM Corbett, GYS Hofmeyr & E Kahn The law of succession in
South Africa (2ed 2001) 566.
For a discussion of the historical development, see NJ Van der Merwe, CJ Rowland & MB
Cronje Die Suid-Afrikaanse erfreg (6ed 1990) 21-89.

Act 81 of 1987 follows the modern notion of drawing the circle of intestate beneficiaries
as small as possible; a notion which does not necessarily correspond with the indigenous
communities' idea of extended families. MJ De Waal The law of succession and the Bill
of Rights available at: http://www.mvlexisnexis.co.za 20 June 2006.

In the KwaZulu-Natal province, customary law of succession is regulated in terms of the
KwaZulu Act on the Code of Zulu Law 16 of 1985.
Act 38 of 1927.
Section 23 was repealed on 12 April 2006 by the Repeal of the Black Administration Act
and Amendment of Certain Laws Act 28 of 2005.
Also referred to as the textbook version.
Indian succession laws 107
evidence will have to be led regarding the existence or non-existence of a

succession rule in a particular indigenous community.10
Another problem was the judiciaries' awareness of the constitutionally

entrenched cultural rights which made them careful not to infringe on the
rights of indigenous communities by adapting their laws to typically western

norms and values.11 However, two-and-a-half
years ago, the Constitutional
Court in Bhe v The Magistrate, Khayelitsha12 amended the customary law of
succession considerably by declaring the customary rule of male
primogeniture, as well as section 23 of the Black Administration Act,

unconstitutional.13 The customary law of succession can now only be applied
if so chosen by means of freedom of testation:14 a freedom which is fairly
unpopular with or unknown to most indigenous communities.15
See TW Bennett Customary law in South Africa (2004) 337-345 for a discussion of the two
versions of customary law of succession. See also JC Bekker & IP Maithufi 'The
Dichotomy between "official customary law" and "non-official customary law'" 1992 TR W
47-60; Mabena v Letsoalo 1998 2 SA 1068 (T) 1074H-I.
As an example, one can refer to the Mthembu v Letsela cases where a mother
unsuccessfully approached the courts three times to contest the rule of male primogeniture
in order to save their family home from her husband's father. The Court was reluctant to
declare the rule of male primogeniture unconstitutional, because of the male heir's
concomitant maintenance duty. See Mthembu v Letsela 1997 2 SA 936 (T); Mthembu v
Letsela 1998 2 SA 675 (T); and Mthembu v Letsela 2000 3 SA 867 (SCA). In the first case,
Le Roux J pointed out that 'the devolution of the deceased's property onto the male heir
involves a concomitant duty of support and protection of the woman or women to whom
he was married by customary law and of the children procreated under that system and
belonging to a particular house .... I find it difficult to equate this form of differentiation
between men and women with the concept of "unfair discrimination" as used in section 8
of the [1993] Constitution (945-947)'.
Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curiae); Shibi
v Sithole; South African Human Rights Commission v President of the Republic of South
Africa 2005 1 SA 580 (CC). Hereinafter referred to as Bhe v Magistrate, Khayelitsha.
Section 23 was described as 'a comprehensive exclusionary system of administration
imposed on Africans',' specifically crafted to fit in with notions of separation and exclusion
of Africans from the people of "European descent'" and with the result of ossifying
customary law. The court found it to be unconstitutional on the basis that it discriminates
on grounds of race, colour and ethnic origin. The violation of equality and human dignity
caused by s 23 was so serious that it could not be justified in terms of s 36 of the
Constitution. See par 61 and 72.
This is also
the option proposed by the Master of the High Court. See the Information
Leaflet distributed by the Department of Justice and Constitutional Development entitled
'Customary law: the way forward'.

There is also the notion that wills (or testate inheritance) were not known in customary law
of succession. However, it was accepted that a family head could make certain allocations
of property to houses and individuals and that his deathbed wishes should be respected.
These remarks serve to indicate that the idea of wills may well have been known to
customary law, albeit not in the Western legal sense. See C Rautenbach, W Du Plessis &
AM Venter 'Law of succession and inheritance' in Bekker, Rautenbach & Goolam (eds)
Introduction to legal pluralism in South Africa (2ed 2006) 93.
108 XLI CILSA 2008
The recent developments resulted in the creation of a universal system of

intestate succession for all South Africans,16 while retaining the option to
utilise the mechanics of testate succession, that is, by means of a will.
Consequently, the dual system of succession law has not been abolished
entirely, it is only the conflict rule indicating the application of the one or the
other system which has changed.17
Further development in the succession laws of South Africa is foreseen. Both

the Constitutional Court18 and the South African Law Reform Commission19
recommended that legislation in this regard should be adopted. As the
envisaged legislation has not yet materialised, it is worthwhile to compare the

legal position in other jurisdictions with that of South Africa. Legal
academics tend to compare aspects of the South African legal system with
European and American legal systems and are prone to forget or ignore the
value of other major legal systems, such as the legal systems of Asia. As
indicated previously,20 the history of South Africa shows considerable
synergies with that of India and, since the phenomenon of legal pluralism is
particularly prevalent in India, it would be worthwhile to compare the
succession laws of India in the hope of determining whether a similar
approach would benefit South Africa.
Which is regulated in terms of a judicially modified Intestate Succession Act - see Bhe v
The Magistrate, Khayelitsha.
17
In other words, it is not s 23 of the Black Administration Act which determines when the
customary must be applied, but the testator himself.

law of succession
18
See par 124 where the Court in Bhe v The Magistrate, Khayelitsha declared: 'This will
ensure that their interests [women and children] are protected until Parliament enacts a
comprehensive scheme that will reflect the necessary development of the customary law
of succession.'
19
The Commission issued various documents pertaining to the customary law of succession.
See, eg, South African Law Reform Commission Project 90 Issue Paper 4 on the
application of customary law: conflict of personal laws (1996); Issue Paper 3 on the
harmonisation of the common law and the indigenous law (customary marriages) (1997);
Issue Paper 12 on the harmonisation of the common law and the indigenous law:
succession in customary law (1998); and Discussion Paper 93 on customary law:
succession (2000). For a discussion of some of the Commission's
proposals, C see
Rautenbach & W Du Plessis 'South African Law Commission's
proposals for customary
law of succession: retrogression or progression?' 2003 DeJure 20-31. The final Report of
the Law Reform Commission is currently at the Minister of Justice and Constitutional
Development for approval and is not available for public scrutiny yet.
20
See C Rautenbach 'Phenomenon of personal laws in India: some lessons for South Africa'
2006 CILSA 241-243. W Menski
Comparative law in a global context: the legal systems
of Asia and Africa (2005) 249 describes the legal system of India as 'an extremely complex
legal system characterised by remarkable plurality of laws'.
At this stage it is important to note that an estate in India has to be distributed

in accordance with the personal law of a deceased.21 Since it is impossible to
discuss the succession rules of all the personal laws in operation in India, I
will focus on the succession
laws of some of the religious communities that
can also be found in South Africa, namely the Hindus, Muslims and Jews.
One exception to the rule that the succession laws of a particular religious
community must apply, is the secular Indian Succession Act22 of 1925.23 The
purpose of the Act was to consolidate all the succession laws in India.24 The
Act applies if parties marry, or register their marriage, in terms of the Special
Marriage Act.25 Succession laws that governed succession of Muslims26 and

Hindus27 are excluded from the purview of the Act.28 Besides focusing on the
position oi Hindus, Muslims and Jews in general in India, 1 will highlight the
legal position of women under the various succession laws.
HINDU LAW OF SUCCESSION

General
Before 17 June 1956 the succession of Hindus was regulated by classic
Hindu law.29 The Hindu Succession Act30 is a codification of the Hindu law
of intestate succession and came into operation on 17 June 1956. It
21
D Pearl Interpersonal conflict of laws in India, Pakistan and Bangladesh (1981) 105.
22
Act 39 of 1925.
23
This Act may also be described as a secular territorial act. B Sivaramayya 'The Indian
Succession Act' in Gangrade (ed) Social legislation in India vol II (1978) 87 refers to
legislation dealing with succession as social legislation, because it is intended to curb evils
such as inequalities between sexes.
24
According to Sivaramayya n 23 above at 88 the Act is a sad reminder of the failure of the
Indian
government to enact a Uniform Civil Code.
25
Act 43 of 1954. See T Mahmood The Muslim law of India (2ed 1982) 11; VV Raghavan
Paruck: the Indian Succession Act, 1925 (6ed 1977) 6. JDM Derrett 'The Indian civil code
or code of family law: practical propositions' in Khodie (ed) Readings in uniform civil code
(1975) 21^10 argued in 1975 that the position in terms of this Act should be changed. He
proposed that the Act should apply to all marriages in India except if the parties register
their marriage in terms of a particular personal law. His proposal was not taken further by
any writer or the Indian government.

26
The classic Muslim law applies to Muslim intestate and testate succession.
27
The Hindu Succession Act applies to Hindu intestate succession and the Indian Succession
Act applies to Hindu testate succession.
28
See P Diwan Law of intestate and testamentary succession (2ed 1998) 294-304 for a
discussion of the categories of persons to whom the Act is applicable.
29
Id at 3. The Hindu Succession Act is generally not retroactive and succession to the
property of a Hindu, who died before 17 June 1956, is governed by the classic Hindu law.
See SA Desai Mulla's principles of Hindu law vol I (19ed 2005) 101-363 and C
Rautenbach 'Hindu law of succession' in Bekker, Rautenbach & Goolam Introduction to
legal pluralism in South Africa (2ed 2006) 269-287 for a discussion of the classic Hindu
law of succession.
30
Act 30 of 1956. The Act has been referred to as the Magna Carta of Hindu women's
property rights. See K Gill Hindu women's right to property in India (1986) 12.
110 XLI CILSA 2008
introduced key changes to classic Hindu law of intestate succession. The
provisions of Part VI of the Indian Succession Act regulate the Hindu law of
testate succession.32 Another important aspect of laws in India, is the fact that
states may legislate on matters pertaining to succession.33 As a result, some
states have amended the law relating to coparcenary property. However, a
discussion of these Acts fall outside the scope of this article.34
Hindu Succession Act
Codification of the Hindu law of succession

The Hindu Succession Act is, to a large extent, a codification of the Hindu
law of succession.35 It makes provision for certain changes to the classic
Hindu law of succession, and although it is in essence a codification of the
Mitakshara law of succession, it is uniformly applicable to all the schools of
Hindu law in India.36 It has no links to religion and is based on relationship
through blood.37
Application of the Hindu Succession Act: who is a Hindu?

The Act applies to a specific territory as well as a specific category of
persons. In terms of section 1 of the Act it is applicable to all Hindus in

India, except the states of Jammu and Kashmir.38 A Hindu is defined in terms
of the Act to include the following category of persons:39
• Hindu
by religion which includes a Hindu, Jain, Sikh or Buddhist,
including converts and reconverts to these religions.
There is no longer a difference in the succession rules in terms of the two schools and their
sub-schools. The Hindu Succession Act introduced one uniform law of succession for all
Hindus. P Diwan Modern Hindu law (1 led 1997) 339.
32
The rules of testate succession regarding Hindus are discussed in S Venkataraman 'Intestate
and testamentary succession among the Hindus' in Gangrade (ed) Social legislation in
India vol II (1978) 61-63.
33
Section 246(3) of the Constitution of India gives legislative powers to the state under
certain circumstances, including the transfer of property.
34 to
For a discussion of some of the amendments, see N Bhadbhade 'State amendments
Hindu Succession Act and conflict of laws: Need for law reform' (2001) 1 SCC (Jour) 40
available at: http://www.ebc-india.com 11 October 2007.
35 the joint
It does not make provision for the survivorship as a mode of devolution regarding
family property.
36
Diwan n 28 above at 4—8; SA Desai Mulla's principles of Hindu law vol II (19ed 2005)
283-284.
37
Venkataraman n 32 above at 54.
38
These states have their own legislation regarding succession. See Diwan n 28 above at
9-11.
39
Section 2 of the Act. Diwan n 28 above at 11-22; Pearl n 21 above at 48^49 Desai n 36
above at 283-284.
Indian succession laws Ill
• Hindu
by birth includes a person born from Hindu, Jam, Sikh or Buddhist
parents.40
•
Any other Hindu is a person to whom no other law applies, but specifically
excludes a Muslim, Christian, Parsi or Jew.41
In terms of section 5 the Act does not apply to couples who have solemnised
their marriage or registered it in terms of the Special Marriage Act.42 For
these couples the Indian Succession Act43 applies to the succession of their
estates. An exception to this provision was enacted in 1976. In terms of
section 21A of the Special Marriage Act a Hindu, Buddhist, Jain or Sikh who
solemnises a marriage retains his or her personal law of succession if both the
parties belong to one of these religions. This means that the Indian
Succession Act applies only if one of the parties is from a different religion44
Although the Hindu Succession Act applies to India (with certain
exceptions), it is a personal law Act as opposed to the Indian Succession Act,

which is a territorial Act.45
Modifications to the classic Hindu law of intestate succession

Devolution of the coparcenary property4
Classic Hindu law allows two modes of devolution, namely survivorship of
coparcenary property, and succession of separate property. Only males are

entitled to a share in the coparcenary property. Upon the death of the male
coparcener his share in the coparcenary property falls back into the
If only one parent is a Hindu, Jain, Sikh or Buddhist it is further required that the child must
be brought up in the relevant religion. See Diwan n 28 above at 19.
41
The reason for this category is because it is sometimes easier to prove that someone is a
Hindu by proving that he is not one of the other religions. Diwan n 28 above at 19. The
provision also makes sense if it is kept in mind that the majority of the minority population
in India comprises of Muslims.
42
The Special Marriage Act may be classified as a territorial Act of India that applies to the
whole of India. In contrast thereto is the Hindu Succession Act, which is a personal law Act
that applies to Hindus only.
43
Although the Indian Act applies
Succession to, inter alia, Christian and Jewish law of
succession, it can also be classified

as a territorial law as opposed to a personal law. In the
well-known case, Mary Roy v State of Kerala 1986 2 SCC 209, the court held that the law
applicable to intestate succession among Christians of the Travancore area of the State of
Kerala is the Indian Succession Act as from 1 April 1951. For a discussion of the case, see
S Champappilly 'Christian law of succession and Mary Roy's case' (1994) 4 SCC (Jour)
9 available at: http://www.ebc-india.com 10 October 2007.
44
T Mahmood laws
Personal in a crisis (1986) 27 points out that this amendment
discriminates other religions whose parties lose their right to their personal
against law of
succession if they get married in terms of the Special Marriage Act.
45
B Sivaramayya Women's rights of inheritance inlndia: a comparative study ofequality and
protection (1973) 1.
46
Coparcenary property is property belonging to a certain category of males in the joint
Hindu family. See Rautenbach n 29 above at 271-274.
112 XLI CILSA 2008
coparcenary and the rest of the surviving coparceners' shares are adjusted
accordingly. The wife or other female heirs of the deceased coparcener, have
no right to the coparcener's in the coparcenary property.
Section 6 of the Act, before its amendment in 2005, introduced the first
revolutionary change to the Hindu law of succession by affording a female

heir,47 and the son of a daughter of a deceased Hindu, a share in the
coparcenary property.48 If a coparcener dies leaving a female heir, his share
in the coparcenary property will devolve by means of succession and not
survivorship.49 The share of the deceased coparcener who succeeds, is

calculated by taking his share immediately before the time of his death into
consideration.50 The situation may be explained as follows:
• A
coparcenary consists of a father, A, and his two sons, B and C. B has a
daughter D and a son E. B dies. His is survived by A, C, D and E.
According to the rules of partition, if calculated immediately as before B's
death, A will receive one third, C will receive one third and B and E will
each receive one sixth.51 However, in terms of section 6 of the Act, B's
share must devolve according to the rules of succession. Since D and E are
both class I heirs, B's one sixth will be divided equally between D and E
and they will inherit one twelfth from B.52
• A
coparcenary consists of a father, A and son, B. A dies leaving only his
son B. A has no female heirs of Class I and no daughter's son and his share
of one half will devolve upon B.53
• A consists of a father, A, and his two sons, B and C. C
coparcenary
separated himself from the coparcenary and took his third of the
coparcenary property with him. A and B continued with the coparcenary.

A dies, leaving his two sons B and C and a daughter D. A's half will
devolve upon B and D in equal shares in terms of section 6. C will not
inherit, because he has partitioned himself.54
As specified in Class I of the Schedule.

48 in
AS Kohli 'Intestate and testamentary succession' in Gangrade (ed) Social legislation
India volII(1978)33;M Shastri Status of Hindu women: a study of legislative trends and
juridical behaviour (1999) 123, 130-136.

49
In terms of Explanation 2 of s 6 a partitioned coparcener who has separated himself from
the coparcenary before the death of the deceased is excluded from taking a share in
succession.
50
Explanation 1 of s 6.
"
B's one third must be divided between himself and his son E. D is a female and does not
participate in the coparcenary.

52
Diwan n 28 above at 46.
53
In this illustration the classic rules of devolution are applicable, because A died without
female heirs or the son of a predeceased daughter. Desai n 36 above at 312-313.
54
Explanation 2 of s 6. A partitioned person may, however, inherit from the separate property
of the deceased. Desai n 36 above at 319.
A Hindu male can always side-step the effects of section 6 by bequeathing

his share of the coparcenary property to other heirs by means of a will.55
According to Sivaramayya, the continuance of the Mitakshara

system of
coparcenary in the Hindu law of succession resulted
in discriminatory
practices against female heirs. If D's share of in the coparcenary property, in

illustration (a), is added to the one twelfth that he inherits in terms of section
6, he actually receives three twelfths compared to E's one twelfth. He points
out that the family system of the Mitakshara Hindu has not survived the test
of the time. It has been influenced by urbanisation and Westernisation and
has disappeared to a large extent.57 He concludes:58
The characteristics of the Mitakshara coparcenary, namely, community

of interest,unity of possession and right of survivorship were eroded by
altered social conditions, judicial decisions and legislations. The essence
and spirit of the ancient Mitakshara coparcenary no longer exists. ... To
promote equality between the sexes, the right by birth in the Hindu law
should be abolished.
In 2005, section 6 as discussed above, was replaced by a new section 6,

which removed the gender discriminatory provisions in the 'old' section 6. In
terms of the new provisions, a daughter of a coparcenar in a joint Hindu
family becomes a coparcener in her own right. She has equal rights and
responsibilities in the coparcenary property and is allotted the same share as
a son.60 Although these changes have been applauded by Indian scholars,
some are of the opinion that the changes are not comprehensive enough to
remove all gender discriminatory provisions in the Hindu law of
succession.61
In terms of s 30 of the Act a Hindu may dispose of his share in the coparcenary property
by means of a will. See Desai n 36 above at 31 IB—312.
56
Sivaramayya n 45 above at 5-6, 11-13.
57
Id at 6-8; B Sivaramayya Family law and social reform 165.
58
Id at 40.
59
In terms of the Hindu Succession (Amendment) Act 39 of2005 which came into operation
on 9 September 2005. The Act is not retroactive and partitions before 9 September 2005
have to conform to the 'old' section 6.
60
See Desai n 36 above at 309-311A for a discussion of the new section 6.
61
See, for example, K Singh 'Amendments to the Hindu Succession Act - are they enough
to bring about gender equality?' available at: http://www.combatlaw.org 11 October 2007.
114 XLI CILSA 2008
Limited woman's estate

The abolition of the limited woman's estate was the second most important
inroad into the classic Hindu law of succession.62 In terms of classic Hindu
law, if a female inherited property from a male or stridhana from another
female, she received only a limited woman's estate which meant that she was
the owner of the property for as long as she lived, but although she had full
and exclusive ownership of the property during that time, her ownership was
restricted in all other respects. For instance, she could not sell the property, or
give it away, or bequeath it in a will. After her death the property she
inherited from the male devolved upon the heirs of the male she inherited it
from, and the stridhana she inherited from the female, devolved upon the
heirs of the female she inherited it from.63
Section 14(1) of the Act abolished the limited woman's estate and converted
existing limited woman's estates into full estates.64 If a female acquires
property in any way whatsoever, she becomes the full owner of such
property without any limitations.65 Furthermore, section 14(1) is retroactive
and applies to limited woman's estates and property acquired before the
commencement of the Act.66 In such a case a woman will only become full
owner of property that is in her possession. According to Diwan,67 possession
does not refer to actual physical possession. To him it refers to 'a right to the
property or control over the property'. This is also the view taken by the
Supreme Court in Jagannathan Pillai v Kunjithapadam Pillai,68 where the
court held that section 14 would come into operation if the female has the
right to claim title to the property regardless of whether she is in physical

possession.69 Section 14(1) also applies where a widow acquires her deceased
husband's interest in terms of the Women's Right to Property Act.70 In terms
of this Act the widow of a deceased who was a coparcerner takes the same
62
Ministry of Information and Broadcasting Government of India Hindu law reform (1965)
32.
63
Rautenbach n 29 above at 284-285.
64
Diwan n 28 above
at 128; AJ Almenas-Lipowsky The position of Indian women in the light
of legal reform (1975)48. The term 'female Hindu' was interpreted by the Supreme Court
to include any female and not only the wife of a deceased. See Vidyav Nand Ram 2001 10
SCC 747.
65
B Sivaramayya Inequalities and the law (1984) 71; Almenas-Lipowsky n 64 above at 48.
66
Desai n 36 above at 377-378.
67
Diwan n 28 above at 142-143.
68
AIR 1987 SC 2251.
69
See also Gummalapura Taggina Mataa Kotturuswami v Setra Veeravva AIR 1959 SC 577;
Balwant Singh v Daulat
Singh 1997 4 SCALE 388.
70
Act 18 of 1937. Although the Act was repealed by the Hindu Succession Act, all rights
obtained and liabilities incurred in terms of the Act remain intact. Desai n 29 above at 114.
place as her husband. She has the right to claim partition of the joint
property if she so wishes.72 The Supreme Court held that a woman's right as
a coparcener in the joint property of a Hindu family, is also property in terms
of section 14(1) of the Hindu Succession Act.73 Section 14(2) of the Act
provides for an exception. If a female acquires the property by way of gift,
under a will or by decree or order of a civil court, and the terms of the gift,
will, decree or order prescribe a limited woman's estate, she will not become
full owner of the property. In such a case the classic Hindu law of succession
will apply to the property.74
Stridhana
Under classic Hindu law, stridhana was classified in various categories.
Section 15 of the Act abolishes this classification and provides for only one
uniform scheme of succession of stridhana,76
The beneficiaries of a deceased female are set out in section 15, and the rules
for distribution of her property amongst the beneficiaries are set out in
section 16. In terms of these sections the beneficiaries of a female are
divided into five categories, namely the:77
• Sons, children of a predeceased son or predeceased
daughters,
daughter and the husband of the deceased: The beneficiaries in this
category inherit simultaneously and to the exclusion of other beneficiaries.

• Heirs of the husband: The beneficiaries in this category inherit only if
there are no beneficiaries in category (a). They inherit simultaneously and
to the exclusion of other beneficiaries.
• Mother and father: The beneficiaries m this
category inherit only if there
are no beneficiaries in categories (a) and (b). They inherit simultaneously
and to the exclusion of other beneficiaries.
• Heirs of the father: The beneficiaries in this
are no beneficiaries in categories (a), (b) and (c). They inherit
simultaneously and to the exclusion of other beneficiaries.
71
Section 3(2) of the Act.
72
3(3) of the Act.
Section
73
Act 30 of 1956. See Sukh Ram v Gauri Shankar AIR 1968 SC 365.
74
Diwan n 28 above at 130. See Beni Bai v Raghubir Prasas 1999 3 SCC 234 and Ram Kali
v Choudhri Ajit Shankar 1997 2 SCALE 417 for an interpretation of s 14(2).
75
See Gill n 30 above at 352^-83 for an in-depth discussion of stridhana, its history and the
influence of the Hindu Succession Act on stridhana.
76
GCV Subba Rao Family law in India: Hindu law and Mohammedan law (1995) 314; Kohli
n 48 above at 39-42; Shastri n 48 above at 142-148.
77
See Desai n 29 above at 259-260,406^131.
116 XLI CILSA 2008
• Heirs of the mother: The beneficiaries in this

are no beneficiaries in categories (a), (b), (c) and (d). They inherit
simultaneously and to the exclusion of other beneficiaries.
There are two exceptions to this order of succession. If a female dies without
children, the property she inherited from her father or mother will devolve
upon the beneficiaries of the father. However, if she inherited the property
from her husband or her father-in-law, the property will devolve upon the
heirs of her husband.78 These rules are obviously to prevent property once
owned by her husband's family falling into strange hands, and vice versa. It
is, however, not clear why the beneficiaries of the father are preferred to
those of the mother in the general order of succession.
Inclusion of women as heirs

The general rule in terms of classic Hindu law was that females were also
excluded from inheriting the separate property of a deceased Hindu male.79
The first relief for women in India was through the provisions of the Hindu
Women's Rights to Property Act,80 which added the respective widows of a
son, predeceased son, and widow of the deceased himself, to the list of heirs
who can inherit from the deceased.81 The Act was repealed by the Hindu
Succession Act.
In terms of the Schedule to section 8 of the Hindu Succession Act, females

are now included in the list of heirs.82 The classic classification of heirs was
scrapped and beneficiaries are now classified into four groups, namely Class
I, Class II, agnates, and cognates.83 The widow, daughters, mother and sons
of the deceased inherit his separate property in equal shares as Class I heirs.
Eight other heirs fall into the category of Class I heirs and inherit from the
deceased through representation.84
Although males and females inherit in equal share, there seems to be

discrimination between the survivors of a son and those of a daughter. The
Section 15(2) of the Hindu Succession Act.

79
See Rautenbach n 29 above at 278-283.
80
Act 18 of 1937. For a discussion of the provisions of the Act, see Gill n 30 above at
137-150.
81
Desai n 36 above at 121-123; Venkataraman n 32 above at 53.
82
Shastri n 48 above at 129.
83
Venkataraman n 32 above at 55.
84
They are the son of a predeceased son, daughter of a predeceased son, son of a predeceased
daughter, daughter of a predeceased daughter, widow of a predeceased son, son of a
predeceased son of a predeceased son, daughter of a predeceased son of a predeceased son,
widow of a predeceased son of a predeceased son.
son and daughter of a predeceased son of a predeceased son, are Class I

heirs, but the son and daughter of a predeceased daughter of a predeceased
daughter, are not. According to Almenas-Lipowsky,85 the reason for this

discrimination is to protect the interests of the daughters and widows in the
pre-deceased male line. It is not clear from his readings why the exclusion of
these females would protect the interests mentioned. The same argument
regarding the exclusion of the males in the same lineage would also protect
the interests mentioned. Why then should there be a difference between the
males and females of the same lineage?
Section 23 used to limit the right of a female regarding the dwelling house to
a right of residence only. Although female beneficiaries became owners of
the dwelling house
left by the deceased in equal shares with the male
beneficiaries, they were not allowed to have the house partitioned. Such a
right was only available to the male beneficiaries.86 The purpose of section
23 was to protect the rights of the sons of the deceased who act as the
providers of the joint family, and who rely on their right to reside with their
families in the dwelling house.87 If a female had the right to claim partition of
the dwelling house, it could be disruptive to the families living in it. Such an
argument can equally be applied to the right of the male beneficiaries of the
deceased. They have the right to claim partition regardless of whether such
partition would be disruptive to the female beneficiaries having a share in the
dwelling house. Kohli88 points out that 'fragmentation of holdings is a natural
consequence of all laws of succession' and that it therefore cannot be used to
discriminate against female beneficiaries. Section 23 was repealed by the
Hindu Succession (Amendment) Act of 2005 and it is nowadays possible for
a female to claim partition of the dwelling house.
The issue of who inherits the family house is also one of the important issues
in South African customary law, especially if there is more than one
surviving wife and only one house to be divided.89
Freedom of testation
In terms of section 30 of the Act, a Hindu male or female may dispose of his
or her property by means of a will. Although there is a difference of opinion
85
Almenas-Lipowsky n 64 above at 48.
86
S Yadav 'Women, Law and Judiciary in India' in Sharma (ed) Justice and social order in
India (1994) 309.
87
Desai n 36 above at 450.
88
Kohli n 48 above at 42.
89
For example, Bhe v The Magistrate, Khayelitsha.
118 XLI CILSA 2008
as to whether Hindus had such a freedom in terms of classic law, it is now

well established that he or she may make testamentary dispositions freely.90
Sivaramayya criticises section 30, which confers freedom of testation on a

deceased Hindu. His main concern is maintenance for the widow after her
husband's may disinherit his wife completely, and after
death. The deceased
his death she may be discarded and left without any means of support.
Although his concerns are not without merit, it must be noted that section 30
is available to male and female Hindu testators. It is therefore also possible
for a wife to disinherit her husband.
The concept of freedom of testation is not unfamiliar in South African law. A

testator is free to bequeath the whole of his or her estate to whomever he or
she wishes. There is no obligation on him or her to divide his or her estate
between the surviving spouse and his or her children. There are, however,
safeguards to protect the interests of a surviving spouse and the children of a

deceased. Children have a common law right to maintenance against the
estate of the deceased, and a spouse, if in need, also has a claim against the
estate of the deceased in terms of the Maintenance of Surviving Spouses
Act.92
Concluding remarks on the Hindu law of succession

Before 17 June 1956 the classic Hindu law of succession applied to the
estates of deceased Hindus. Since then the classic rules have been modified
and codified to a large extent. Major changes to the classic rules have been
introduced by means of legislation. The most important legislation regarding
the Hindu law of succession is the Hindu Succession Act that came into
operation on 17 June 1956.
Although the Hindu Succession Act is a clear break with the classic Hindu
law of succession, it is not free of discrimination.93 The fact that there are two
different schemes of succession for males and females, may be seen as
The owner of a share in the coparcenary property may also dispose thereof by means of a
will. Desai n 36 above at 308-309, 468^470.
91
Sivaramayya n 23 above at 63-66.
92
Act 27 of 1990.
93
For more criticism of the Act, see Gill n 30 above at 490-495. He places the reason for
inequality solely on the shoulders of man.

According to him 'man's greed of power and
fame, and... man's lust for property which is the source of a socially high status and power
of influence in political' sphere are the reasons for the unequal treatment of females
regarding property (494).
unequal treatment. In terms of the schedule to the Act, the mother of the
deceased is a Class I heir and the father a Class II heir. The result is that the
father of the deceased only inherits if there are no Class I heirs.95 This may
also be seen as discriminatory.96 Section 23 of the Hindu Succession Act,
which prohibited a female heir to claim partition of the house she inherited,
was repealed in 2005.97
Apart from these examples of discrimination in the Hindu law of succession,

the law as it is applied in India today shows a positive reform with regard to
the position of females. It clearly shows that rules of personal law based on
religion are not above reform in order to bring them into conformity with
social and legal change. Kohli98 is of the opinion that women in India are not
properly informed of their rights in terms of the Hindu Succession Act. He

pleads for the proper propagation and popularisation of their rights so that
they can be exercised effectively."
MUSLIM LAW OF SUCCESSION

General
The Indian policy of non-interference with Muslim personal law in India also
applies to the Muslim law of succession. In terms of section 2 of the Muslim

Personal Law (Shariat) Application Act,100 Muslim personal law is applicable
to all matters regarding:
... intestate succession, special property of females, including

personal property inherited or obtained under contract or gift102
or any other provision of personal law, marriage, dissolution of
marriage, including talaq, ila, zihar, lian, khula and mubara'at,
94
Mahmood n 44 above at 28.
95
Section 8 of the Hindu Succession Act.
96
Mahmood n 44 above at 28.
97
See the Hindu Succession (Amendment) Act of 2005.
98
Kohli n 48 above at 48.
99
He argues that equality between males and females can be achieved by abolishing the
classic formulas of right by birth and devolution by survivorship that affords men a superior
position to women. Kohli n 48 above at 64.

100
Act 26 of 1937. It is generally accepted that the application of Muslim personal law in India
is not dependent on the provisions of this Act. Even without this Act Muslim personal law
is applicable in India. AM Bhattacharjee Muslim law and the Constitution (1994) 23-24.
""Referred to as fara'id or mawarith. See T Mahmood Statutes of personal law in Islamic
countries - history, texts and analysis (2ed 1995) 273.
102Own emphasis. One important personal matter, namely wills, is not mentioned in the Act.
It is generally accepted that Muslim personal law is also applicable to matters regarding
Muslim testamentary succession. T Mahmood Statute-law relating to Muslims in India
(1995) 95-97, 254.
120 XLI CILSA 2008
maintenance, dower, guardianship, gifts, trusts and trust properties

and wakfs (other than charities and charitable institutions and
religious endowments)....
It is clear from this provision that succession to the property of a Muslim

must be regulated in terms of classic Muslim law.103 The Act contains no
substantive provisions of Muslim law on any subject and is merely a
declaration of the application of Muslim personal law in certain matters and
where the parties in those matters are Muslims.104
Who is a Muslim?
Muslim personal law (and therefore the Muslim law of succession) is
applicable where the 'parties are Muslims'.105 The term 'Muslim' is not
defined in terms of the Muslim Personal Law (Shariat) Application Act, or
any other Act in India. According to Mahmood,106 a Muslim is a 'person who

claims to be a Muslim and does not claim to be the follower of any of the
known religions other than Islam, or is a minor child of such a person'. Such
a definition includes a person born as a Muslim, who converts to Islam, and
members of Muslim schools. For Diwan,107 a Muslim is one who believes
that there is only one God and that Mohammed is his prophet.108 The religion
of the father is used to determine the religion of a child. The religion of the
mother is irrelevant.109
The impression is further created by the use of a plural 'parties that both
parties to a matter must be Muslims before Muslim personal law can be

applied. Mahmood110 proposes two possible interpretations of the use of the
word 'parties'. First of all, he says, the word may be used as a synonym for
""Section 4 of the same Act confers upon the State the power to 'make rules to carry into
effect the purposes' of the said Act. As already stated the interference of the State in respect
has been minimal and any attempt from the State to develop Muslim personal law by means
of legislation has been met with resistance.
104Mahmood n 101 above at 81-100 discusses the scope and application of the Act in detail.
D Pearl & WF Menski Muslim family law (3ed 1998) 29 point out that Muslim law, as
applied in India, is based on the principles of Islamic Shari'ah, but with considerable
modification.
105
Section 2 of the Muslim Personal Law (Shariat) Application Act.
106Mahmood n 97 above at 86-87.
107P Diwan 'Family law (Hindus, Muslims, Christians, Parsis and Jews)' in Minattur (ed) The
Indian legal system (1978) 637; P Diwan Muslim law in modern India (1982) 1 et seq.
108See also FB Tyabji Muslim law (3ed 1998) 5; B Malik & RB Sethi BR Verma's
Mohammedan law: in India and Pakistan (5ed 1978) 58; Pearl & Menski n 104 above at
121 et seq discuss in detail the various viewpoints on the question as to who is a Muslim.
109See also Pearl n 21 above at 35, 41 —48.
""Mahmood n 101 above at 85.
the word 'cases'. In other words, it refers to cases where one or more of the
parties to a case is a Muslim. Secondly, he argues that it could mean that

Muslim personal law is only applicable to cases where both of the parties are
Muslims. He points out that such a viewpoint is not free from difficulties. For
example, the Dissolution of Muslim Marriages Act111 applies to 'women

married under Muslim law' and not only 'Muslim women'. It is therefore
possible for a woman (who has converted to another religion) to apply for
divorce under this Act.112
The solution Mahmood proposes is to apply Muslim personal law to

situations where the relevant transaction has taken place, or the right claimed
has occurred, under Muslim law. If both parties are Muslims, but their
marriage was solemnised in terms of the Special Marriage Act, Muslim

personal law will not apply to their marriage.113 In such a case the Special
Marriage Act, which is a secular territorial Act, will apply and the devolution
of their estates will be regulated in terms of the Indian Succession Act.
Muslim law of succession

As already stated, the position is much the same as under classic Muslim law
of succession.114 If a Muslim dies without leaving a valid will,115 his or her
property is divided according to the rules of Muslim intestate succession. The

male generally gets a share twice as great as his female counterpart.116 For
example, a brother inherits twice as much as his sister, a husband inherits

twice as much as his wife, and so forth. Furthermore, the widow of the
mAct8of 1937.
I12Mahmood n 101 above at 85.
ll3Mahmood n 101 above at 85.
U4See NMI Goolam 'Islamic law of succession' in Bekker, Rautenbach & Goolam (eds)
Introduction to legal pluralism in South Africa (2ed 2006) 297-308 for the classic Muslim
law of succession. See also SA Ali 'Inheritance among Indian Muslims' in Gangrade (ed)
Social legislation vol II (1978)
in India 71-82. Writers such as WF Menski 'The reform of
Islamic family law and a uniform civil code for India' in Mallat & Connors (eds) Islamic
family law (1990) 267-268 and Mahmood n 44 above at 49-94 argue that Islamic law in
India is different from other Islamic laws. Menski (at 268) advocates the continuation of
Islamic law in India as it is, since it would be senseless to return to Islamic law as it was.
Writers do, however, agree that the adulterated Islamic personal law in India has not been
much interfered with in modern India.
115The classic rule that a Muslim is competent to bequeath one third of his or her estate
by
means of a will under certain conditions is still applicable today. The remaining two thirds
of the estate must devolve according to the rules of intestate succession. See MD Manek
Handbook of Mahomedan law (Muslim personal law) (1948) 203.
,16Except in the case of the father and the mother who inherit one sixth share each when there
is a lineal descendant. See SA Kader Muslim law of marriage and succession in India: a
critique with a plea for optional Civil Code (1998) 70-71.
122 XLI CILSA 2008
deceased can never inherit more than a quarter from the deceased if he died
without children, and an eighth if he died with children.117
According to Kader, there is no reason why this situation should prevail
today. He points out that women have surged forward to occupy equal status
with men. They participate in every field of human activity and are equally
qualified or competent. He refers to article 14 of the Indian Constitution,

which affords women equality before the law and equal protection of the
law, and to article 15, which prohibits the state from discrimination on the
ground of sex, and says:
The discrimination against women in the matter of inheritance is an
anachronism in the modern age.
Anderson does not agree with the argument that the rule of a double share
to a male is discrimination on the ground of sex as envisaged in terms of
articles 14 and 15 of the Indian Constitution. He points out that it is the
responsibility of the male to maintain his wife and children, and a greater
share should be allocated to the male to allow him to fulfil his obligations.
Seen this way, the rule does not discriminate on the ground of sex alone, but
also on other grounds, and is therefore not a violation of the Indian
Constitution. Anderson's argument may be compared to the argument
followed in the South African case of Mthembu v Letsela,m and the same
criticism may be voiced against it. It is nonetheless arguable whether this
view would still hold water in the modern world, even in India, where
women are becoming more and more socially and economically independent,
and where the family structure as we know it, is deteriorating.
If a Muslim solemnises
or registers his marriage under the Special Marriage
Act, he acquires full testamentary capacity and may bequeath his entire estate
as he pleases.122
117JND Anderson 'Islamic law of intestate and testate succession and the administration of
deceased persons' assets' in Mahmood (ed) Islamic law in modern India (1972) 204.
118Kader n 116 above at 70-71.
119
As an example he refers to Turkey and Somalia, where the rule of a double share for males
has been changed. A discussion of these legal systems falls outside the scope of this article.
See also Mahmood n 101 above at 275.
120JND Anderson 'Muslim personal law in India' in Mahmood n 117 above at 42-43.
1211998 2 SA 675 (T).
122In terms of s 213(2) of the Indian Succession Act.
Reform of Muslim personal law in India

So far any attempts by the courts and the legislature to reform Muslim
personal law in India have met with resistance.123 According to Kader,124

legislative action is indispensable for reform of Muslim personal law in order
to give due recognition to the rights of women in India. He discusses three
available options, namely the codification of personal laws, the framing of a
Uniform Civil Code applicable to all citizens, or the framing of an optional
Uniform Civil Code.125 He acknowledges the fact that there are Muslim
scholars who are ready for change, but argues that the vast majority of them
frown upon any change or reform of Muslim personal law. He points out that
these scholars are of the opinion that Muslim personal law is immutable due
to its religious character.126 However, according to him, the Shari'a consists
of two elements, namely religious and secular. The religious element
includes the five basic concepts of Islam, namely Kalima,127 Namaz,m
Ramajdan,129 Zakkadh130 and Hajj.m These concepts are immutable spiritual

concepts. However, the secular element includes matters such as the law of
crimes, the law of evidence, the law of contract, the law of succession, the
law of marriage, and so forth. These matters are secular activities that are
associated with religious practice and are susceptible to change.132
Ratnaparkhi refers to the argument of some Muslim scholars that their law
and religion are so intermingled that change in Muslim personal law will
inevitably lead to change in religion, and advances convincing arguments to

the contrary.134 He refers to the viewpoint of an eminent Muslim scholar,
123As already stated some legislation that effected some minor changes to Muslim personal
law was enacted. This is due to the sentiment that 'Islam reformed is Islam no longer' and
that 'law and religion are intermingled.' See Bhattacharjee n 100 above at 28; Ali n 114
above at 82-83; Menski n 114 above at 25.
124Kader n 116 above at 90.
125See also D Latifi 'Change and the Muslim law' in Mahmood n 117 above at 113.
126Kader n 116 above at 92-93. FR Faridi 'Islamic personal law in India: scope and
methodology of reform' in Mahmoodn 117 above at 123-127 is one of the writers who is
of the opinion that Muslim personal law is part of religion and may therefore not be
changed.
l27The belief in the unity of God and the prophetic character of Mohammed.
128Prayer five times a day.

129Fasting during the days of Ramadan.
130Charity to the poor.
13'Pilgrimage to the holy city of Mecca for those who can afford it.
132Kader n 116 above at 7092-93.
133
S Ratnaparkhi Uniform Civil Code: an ignored constitutional imperative (1997) 11-16.
134This belief is based on a 'binding core of religious dogmas that all believers have to accept
without qualification'. See Menski n 114 above at 257. See also T Mahmood 'Progressive
codification of the Muslim personal law' in Mahmood n 117 above at 80-81 for his earlier
viewpoints on the matter and T Mahmood 'Muslim identity and the Constitution of India'
124 XLI CILSA 2008
Fyzee,135 regarding the difference between law and religion and quotes with
approval the following:
Religion is based on spiritual experience; law is based on the will of the

community as expressed by the legislature, or any other law making
authority.
He points out that whereas religion is unchangeable, laws must change to

meet changing circumstances. Therefore, where Muslim personal law is in
conflict with modern law, it must be developed. He refers to the Quran and
says that even the Quran 'calls on man to follow the principles of justice and
equity'.136
Ghouse argues that the reform of Muslim personal law would not violate
religious freedom or the cultural rights of Muslims. He agrees that the Quran
and the Sunna are the basic sources of Muslim law, but points out that these
two sources regulate relations that are social or secular in nature. Since article
25(2) of the Indian Constitution empowers the state to develop or make laws
regarding social and secular matters, the result is that matters dealing with
... marriage, divorce, inheritance, and other aspects of personal status
are, despite the sources of the Muslim law regulating them, social or
secular activities surrounding religion. The state can validly enact

measures of social welfare and reform in respect of the matters governed
by the Muslim law. In India the Muslim law acquired binding force not
fromits divine origin but fromthe Constitution of the country.139
Derrett the various objections to Muslim law reform and comes

discusses
to the conclusion that a compromise between those who believe that Muslim
law is sacred and cannot be changed, and those who believe that any law can
and must change to adapt to changing circumstances, seems highly unlikely.
He refers to international jurisdictions that allow an aggrieved party (subject
of a religious law) an action for damages if he or she is injured due to the
rules of such a personal law. As an example he refers to French law, which
1986 IslamicCLQ 105 for his present viewpoint on the matter; Faridi n 126 above at 123.
135
AAA Fyzee A modern approach to Islam (1964) 187.
n6AAA Fyzee The reform of Muslim personal law in India (1971) 34.
137M Ghouse 'Personal laws and the Constitution in India' in Mahmood (ed) n 117 above at
50.
i380wn emphasis.
139Ghouse n 137 above at 54—55. This viewpoint was initially shared by Mahmood n 134
above at 213.
140JDM Derrett Religion, law and the state in India (1999) 534.
allows wife to sue her husband for damages

a Jewish under certain
circumstancesif he refuses to divorce her.141The possibilities of such a claim
would prevent anti-social or use (or abuse as he calls it) of personal laws.
Although there is no such claim available to Muslims, Jews, Hindus or other

religions in India, he is of the opinion that such reform would pave the way
for a future Uniform Civil Code.142
Another writer, Akbarabadi, is of the opinion that Muslim law is 'by its
very nature and structure' amendable and changeable. He emphasises that

Muslim law has always been able to adapt to the changing needs of society,
and that the Ulama should look to the need for change and make
suggestions.144
The comments of Edge in this regard might just as well apply to the
situation pertaining to the recognition of Muslim law in South Africa. He
says:
... the reality will continue to be that Islamic Law will be less and less
important in practice and that its expression even in areas such as family
law will be codified along broadly similar lines. I thinkwe will see in the
next ten years or so family laws or codes promulgated in those remaining
countries without such legislation. ... In Civil Law the trend towards a
harmony of mainly Western with some Islamic Law input will continue.
Concluding remarks on the Muslim law of succession

In contrast to the Hindu law of succession, the Islamic law of succession has
in the main remained static over the years. The 'half rule', which applied to
women under classic Islamic law of succession,
is still applied in modern
India. Some Muslims in Indiaresist attempts by the Indian courts and
legislature to develop Muslim law. The 'half rule' that favours Muslim men
with regard to inheritance appears to discriminate against Muslim women.146
141
In terms of Jewish law it is the prerogative of the husband to divorce and the wife may not
divorce her husband. Derrett n 140 above at 540-541.
142
Id at 541-542. See also Derrett 1966 LQ 144 and B Sivaramayya 'Equality of sexes as a
human and constitutional right and the Muslim law' in Mahmood (ed) n 117 above for
further arguments against and for the reform of Muslim personal law.
143SA Akbarabadi 'How to effect changes in Islamic law' in Mahmood (ed) n 117 above at
114.
mId at 122.
145I Edge 'Recent
trends in Islamic law' in Toll & Skovgaard-Petersen (eds) Law and the
Islamic world:
past and present (1998) 21.
146Writers such as R Mehdi 'The legal rights of Muslim women: a pluralistic approach' in Toll
& Skovgaard-Petersen (eds) Law and the Islamic world: past and present (1998) 106,113
point out that Muslim women are in many instances compared with their Western
126 XLI CILSA 2008
However, since regard their law as divine, they are in general

Muslims
opposed to any development that would change the divinity of their law. In
the words of Schacht,147 the Muslim law of succession is 'in the conscience
of Muslims, more closely connected with religion than other legal matters,
and therefore generally ruled by Islamic law.' The majority of the writers
who propose changes to Muslim personal law agree that such change can
only be affected by the legislature. Writers such as Jain'48 point out that in
contrast to India, many other Muslim countries have modified Muslim law to
adapt it to the changing needs of the Muslim community.149 Therefore, the

resistance against any reform of Muslim law in India, which has a Muslim
minority, is a strange phenomenon.
Mahmood, in his earlier writings noted,
It is claimed that Islam was the emancipator of women. ... The personal
law of Islam conferred on women the right to hold and dispose of
property,right to inheritance, right to make free marital choice and right
to seek divorce. ... Now, after Islam has completed a life of over thirteen
centuries, furtherprogress in the fields of women's rights and equality of
sexes has been made in all parts of the globe. And this course of progress
has been joined, to varying extent, also by what represents a major
portion of the Muslim world. Why are, then, the Muslims of India lagging
behind?
JEWISH LAW OF SUCCESSION

General background
Although there is a small Jewish minority in India, Pearl points out that the
Jewish community in India 'tends to be forgotten within the ocean of Indian
humanity'. In spite of this, they do have a personal law that has been applied
by the courts in Jewish disputes from time to time if 'justice, equity and good
counterparts and then found to be discriminated against. Such a method leads to
stereotyping and generalisation. She argues that the rights of Muslim women should be
analysed within the framework of legal pluralism. Their rights should be studied in
accordance with the various interpretations of the Shariah.
147
J Schacht An introduction to Islamic law (1964) 76.
I48MP Jain Outlines of Indian legal history (5ed 1990) 629.
149T Mahmood Family law reform in the Muslim world (1972) also discusses these reforms
in detail in his book.
150Mahmood n 134 above at 93.
151
Pearl n 21 above at 55-56. He points out that there are three main groups of Jews domiciled
in India and Pakistan, namely the Bene Israel, the Jews of Cochin and Baghdadi Jews.
conscience' have required it. It is clear from the authorities that their
matrimonial law is based on classic Jewish law.153
The same cannot be said of the Jewish law of succession. During British rule
the English law of succession was applied to the Jewish population in India.
In 1865 the English law of succession was codified. The Indian Succession
Act154 was the result. It applies to Jews as well.155
With regard to the question who a Jew is, it seems to be anyone who
practices or professes the Jewish religion.156 From judicial decisions, the

question of whether one is a Jew or not, is a factual question that depends on
the facts of each case. It seems as if it will be accepted that someone is a Jew
if so alleged, unless otherwise proved.157
JEWISH LAW OF SUCCESSION

General
The Jewish law of succession in India is codified in terms of the Indian
Succession Act,158 and deviates to a large extent from the classic Jewish law
of succession.159 It is safe to say that, although in general the rules of
succession in India are governed by the personal law of a deceased, the same
is not true for Jews. Their law of successionis not governed in terms of their
personal law, but in terms of a general secular Act, namely the Indian
Succession Act.160 In all matrimonial matters they are still governed by their
classic Jewish personal law.161
152See eg Engel v Engel ILR 1944 Bom 481; Pearl n 21 above at 56.
153Diwan n 107 above at 2.
154The Indian Succession Act 10 of 1865, which was repealed by the Indian Succession Act.
The preamble states the purpose of the Act is to consolidate the existing testate and
intestate rules of succession in India.
155The relevant provisions of this Act will be discussed hereafter.
157See Diwan n 107 above at 10.
158See P Pradhan 'The scheme of inheritance under the Indian Succession Act, 1925: a
comparison with Islamic and Hindu law' 1982 IslamicCLQ 101.

,59For a discussion of the classic Jewish law of succession, see C Rautenbach 'Jewish law of
succession' in Bekker, Rautenbach & Goolam (eds) Introduction to legal pluralism in
South Africa (2ed 2006) 287-297.
160Before the commencement of the Act in 1865 the Jews were governed by the English rules
of succession. See Diwan n 28 above at 289.
128 XLI CILSA 2008
Indian Succession Act

The Indian Succession Act is a secular territorial Act that was originally
intended to apply to the whole of India.162 However, it contained so many
exceptions that today it only applies to a limited number of people in India.163

Apart from Jews, the Act is applicable to Europeans, Anglo-Indians,
Armenians, Indian Christians, Parsees and persons marrying under the
Special Marriage Act.164
Part II of the Act deals with matters such as international law and
domicile. For example, in terms of section 15 of the Act a wife's domicile
follows the domicile of her husband during their marriage. Part III of the Act
deals with the consequences of a marriage.166 The effect of section 20 of the
Act is more or less the same as a marriage out of community in terms of
South African law, where the husband and wife control their separate estates.
Part IV of the Act deals with consanguinity, lineal consanguinity169 and

collateral consanguinity.170 In the case of lineal consanguinity, every
According to Sivaramayya n 23 above at 87, 88 the Act is considered to be 'social
legislation' since it is intended to curb social evils such as untouchability and dowry. The
Act, to him, is 'a sad remainder of the neglect of the Directive Principle of State Policy
outlined in Article 44 of the Constitution.'
163
In terms of s 3 of the Act the State may exempt any race, sect or tribe from the operation
of the Act. See Diwan n 28 above at 322 for a list of exempted classes of persons. The Act
does not apply if the deceased was a Hindu, Muslim, Buddhist, Sikh or Jain. See also Subba
Rao n 76 above at 541.
164Section 1 of the Indian Succession Act. Sivaramayya n 23 above at 88.
165Sections 5-19. See Diwan n 28 above at 323-376 for a detailed discussion of part II of the
Act.
l66Sections 20-22. See Diwan n 28 above at 377-381 for a detailed discussion of part III of
the Act.
""Sections 23-30. See Diwan n 28 above at 382-392 for a detailed discussion of part IV of
the Act.
168Consanguinity is defined in terms of s 24 of the Act as: '... the connection or relation of
persons descended from the same stock or common ancestor.' This definition includes a
relative in the direct line or collateral (relative in the collateral line). According to Diwan
n 28 above at 383 a wife, mother-in-law or stepmother is not relations by consanguinity but
relations by affinity.
169In terms of s 25(1) of the Act lineal consanguinity is defined as: '... that which subsists
between two persons, one of whom is descended in a direct line from the other, as between
a man and his father, grandfather and great-grandfather, and so upwards in the direct
ascending line; or between a man and his son, grandson, great-grandson and so downwards
in the direct descending line.' In South African law they are referred to as descendants if
they descend directly from the deceased and ascendants are those from whom the deceased
descends.
170Section 26(1) of the Act defines collateral consanguinity as: '... that which subsists
between two persons who are descended from the same stock or ancestor, but neither of
whom is descended in a direct line from the other.' This category of persons is not a
person's ancestors or descendants, for example the brother or sister of the deceased or the
generation constitutes a degree. In the case of collateral consanguinity, the
degree is calculated by counting upwards from the deceased to the common

ancestor, and then down to the collateral relative. Each person constitutes a
degree.172
The Act does not recognise illegitimate relationships, and the illegitimate
children of a deceased, for example, would not inherit from the deceased.173
The Act does not distinguish between relations on the paternal and maternal
side, and between half-blood and full-blood relations.174 In terms of section
27(c) of the Act, a posthumous child is in the same position as living children
if he or she had been conceived at the stage at which the deceased died, and
was subsequently born alive.175
Intestate succession
General principles
Part V of the Act deals with intestate succession and is divided into three
chapters. Chapter I176 deals with preliminary matters such as the application
of Part V,177 and the circumstances when intestate succession will occur.178
Chapter II179 contains the rules of division between the intestate beneficiaries
of a deceased.
In terms of section 32 of the Act the property of a deceased devolves upon

the wife or husband, or in their absence, upon the consanguinity of the
deceased. It must devolve
in the order of and according to the rules laid down
in sections 33 to 49. The following situations may be described:180
brother or sister of the deceased's father. In South African law they are also referred to as
collaterals.
"'Section 25(2).
172Section 27(3).
174Section 27(a) and (b).
'"Similar to the nasciturus-fiction in South African law.
176Sections 29-30.
177In terms of s 29 of the Act part V is not applicable to the property of a Hindu, Muslim,
Buddhist, Sikh or Jain.
178In terms of s 30 of the Act a person has died intestate if he or she dies without leaving a
valid will. See Diwan n 28 above at 390 for illustrations of the various situations where a
person has died intestate.

"'Sections 31-49. Chapter III (s 50-56) deals with intestate succession between Parsees.
180In terms of s 35 of the Act a husband of a deceased female is in the same position as a
widow. See Diwan n 28 above at 398-399 for a discussion of the widower's position.
130 XLI CILSA 2008
• His wife and no lineal descendants survive the deceased: She will
inherit the whole of his estate.181
• His wife and lineal descendants survive the deceased : She will inherit
one third of his estate, and the remaining two thirds will be divided among
the lineal descendants in terms of sections 37^40.182
• The deceased is survived by his wife and no lineal descendants, but
other consanguinity: She will inherit half of his estate, and the remaining
half will be divided among the other consanguinity in terms of sections
41^8.183
• The deceased died without a wife: His property will devolve upon his
beneficiaries in the following order:184
-
Firstly upon the lineal descendants.
-
Secondly upon the consanguinity, other than the lineal descendants.
-
Thirdly and lastly, upon the government of India.
Distribution among lineal descendants

As already stated a deceased's estate is distributed among the lineal
descendants in terms of sections 37^10 of the Act. The various situations
may be summarised as follows:

• Children descendants in the first survive the
(lineal degree)
deceased:185 If the deceased dies without a wife/husband, the whole of the
estate devolves upon the children in equal shares or devolves as a whole
upon an only child. If a wife/husband and children survive the deceased,
the wife/husband inherits one third and the children inherit two thirds in
equal shares or it devolves as a whole upon an only child.

• Grandchildren
(lineal descendants in the second degree) survive the
deceased:186 If only grandchildren survive the deceased187 they inherit the
whole of the estate in equal shares.
• and remoter lineal descendants
Only great-grandchildren (lineal
descendants in the third and more remote degrees) survive the
181
Section 33(c). Section 33 A of the Act was inserted in 1926 to make provision for a widow
when her husband's estate was too small to provide for her. In terms of this section she
receives the whole of her husband's estate if its net value is less than 5 000 rupees. If the
net value of the estate exceeds 5 000 rupees, the widow is entitled to a guaranteed 5 000
rupees plus the residue of the estate (after debts, funeral costs and administration costs have
been deducted).
182Section 33(a).
'"Section 33(b).
l84Diwan n 28 above at 397.
185Section 37. Illegitimate and adopted children are not included. Diwan n 28 above at 402.
186Section 38
187
And no wife/husband or children.
deceased: The rule is that the nearer excludes the more remote, and that
the descendants in the same degree inherit equally.189
• Predeceased lineal descendants: Section 40 makes for the
provision
representation of predeceased lineal descendants.
Distribution if there are no lineal descendants

As already stated, sections 42^48 deal with the distribution of a deceased's
estate where he has no lineal descendants. If the deceased is survived by a
wife/husband, a widow's share, that is half of the estate, must be deducted
before the residue of the estate is distributed among the other beneficiaries.190
The position may be summarised as follows:191
• Father survives the deceased: The father inherits the whole of the
estate, except if the deceased is survived by a wife/husband, in which case
the father will inherit half of the deceased's estate, and the wife/husband
the other half.
• Mother, 4
brothers and sisters survive the deceased: The
wife/husband inherits half if she or he survives the deceased.195 The other
half will be divided equally among the surviving mother, brothers and
sisters. If there is no wife/husband, the brothers or sisters and the mother of
the deceased will inherit the whole of the estate in equal shares.
• brothers and sisters and children of predeceased brothers or
Mother,
sisters survive
the deceased:196 If the deceased is survived by a
wife/husband, she or he inherits half of the estate, and the other half will be
divided in equal shares among the brothers and sisters of the deceased. Any
predeceased brothers and sisters will be represented by their parents and

will inherit per stirpes}91
• Mother and children of predeceased brothers and sisters survive the
deceased:'98 If the deceased is survived by a wife/husband, she or he
inherits half of the estate and the other half will be divided in equal shares
between the mother and children of the predeceased sisters and brothers. If
188Section 39.
189Diwan a 28 above at 402-403.
""Section 33(b).
191
See Diwan n 28 above at 403^09 for illustrations of the various situations that may occur.
192Section 42.
l93Mother does not include stepmother. Diwan n 28 above at 406.
194Section 43.
195The father of the deceased must be predeceased. Diwan n 28 above at 406.
196Section 44. The father of the deceased must be predeceased. Diwan n 28 above at 404.
197See Diwan n 28 above at 407 for examples.
198
Section 45. The father, brothers, sisters and lineal descendants of the deceased are
predeceased.
132 XLI CILSA 2008
there is no surviving wife/husband, the whole of the estate will be divided

between the mother and children of the predeceased brothers and sisters.
• Mother If the deceased is survived by a
only survives the deceased:
wife/husband, she or he inherits half of the estate, and the mother of the
deceased will inherit the other half. If there is no surviving wife/husband,
the mother of the deceased will inherit the whole of the estate.
• Brothers and sisters and children
of brothers and sisters only survive
the deceased:200 If the deceased
is survived by a wife/husband, she or he
inherits half of the estate, and the other half will be inherited by the
brothers and sisters of the deceased. Predeceased brothers and sisters will
be represented by their children. They inherit per stirpes. If there is no
surviving wife/husband, the whole of the estate will be divided among the
brothers and sisters. Again the predeceased brothers and sisters may be
represented by their children. They inherit per stirpes.

* Relatives other than the
mother, father, lineal descendants, brothers
and sisters survive the deceased:201 The rule is that the nearer relatives
exclude the more remote.
Testate succession among Jews
Testate succession among Jews is regulated in terms of Part VI of the Indian

Succession Act. In terms of section 59 of the Act everyone who is of sound
mind and who has reached the age of majority may make a will.202 In terms
of Explanation 1 to section 59 of the Act, a married woman is competent to
dispose of her property by means of a will. It is therefore clear from these

general provisions in the Act that Jewish males and females have freedom of
testation, regardless of their sex or matrimonial status.203
Concluding remarks on the Jewish law of succession

The Jewish law of succession in India is codified in terms of the Indian
Succession Act, and deviates to a large extent from the classic Jewish law of
succession. Although, in general, the personal law of a deceased governs the
rules of succession in India, the same is not true for Jews. Their law of
succession is not governed in terms of their personal law, but in terms of a
'"Section 46. The father, brothers, sisters, lineal descendants and children of the brothers and
sisters of the deceased are predeceased.
200Section 47. The father, mother and lineal descendants of the deceased are predeceased.
201
Section 48.
202The requirements are more or less the same as in South African law. In terms of s 4 of the
Wills Act 7 of 1953 a person must be sixteen years or older and mentally sober to make a
will.
203A further discussion of the testate law of succession falls outside the scope of this article.
See Diwan n 28 above at 429 et seq.
general secular Act, namely the Indian Succession Act. In all matrimonial
matters they are still governed by their classic Jewish personal law.
It is clear from the provisions of the Indian Succession Act that there is no
discrimination between male and female beneficiaries. Brothers and sisters,
wife and husband, and daughters and sons all inherit equally from a deceased
male or female. There is, however, one aspect of the Act that may be seen as
discriminatory. The Act favours the father of the deceased when there are no
lineal descendants. He only has to share with a surviving wife/husband of the
deceased. If there is no surviving wife/husband, he inherits the whole of the
estate. On the other hand, the mother of the deceased inherits only if the
father of the deceasedis predeceased. Furthermore, she has to share with the
surviving wife/husband and brothers and sisters of the deceased.
CONCLUSION
As pointed out, various personal laws are in operation in India. These
personal laws each have their own rules of succession, which differ
considerably. It is clear from the discussion of some of these rules that

discrimination against females is still prevalent. As Pradhan205 points out:
... the laws of inheritance, contain some or the other provision,
discriminating against women and imposing disabilities on them. The

reason evidently, is the inability of Indians to digest the idea, of equality
of women, in matter of inheritance. The male dominated society, always
finds ways, through laws and customs, to suppress them, and subject
them to social oppression.
Furthermore, the plurality of succession rules creates confusion and

uncertainty206 and makes provision for conversion of individuals between
personal laws in order to find a system that pleases them more.207
Furthermore, the lack of a Uniform Civil Code in the field of succession laws
204See Rautenbach n 20 above at 241-250.

205P Pradhan 'Uniform civil code: law of inheritance
and succession' in Menon (ed) Silver
jubilee year national on
convention
uniform civil code for all Indians (1986) 329.
206Pradhan n 158 above at 101-116 wrote an illuminating article in which he compares the
outcome of the same factual situation in the Muslim, Hindu and Indian law of succession.
He clearly shows that the difference in succession rules leads to a difference in the outcome
of each factual situation.
207BN Sampath 'Conversion and inter-personal conflict of laws' in Mahmood (ed) n 117
above at 128-132 gives illustrations of the problems that conversions between religions
may create.
134 XLI CILSA 2008
may be seen as a threat to national integrity and solidarity, and interference

of religion with family laws.208
Various reasons are advanced for the Indian legislature's failure to reform the
various succession rules in India.209 They include:
• Lack of initiative on the
part of the legislature to interfere with the
succession laws.
• Unlimited freedom of testation in some succession laws.
• Refusal of some minorities to have their succession laws developed or
altered.
Pradhan suggests various solutions to the problem. He argues that religion

and personal laws should be separated. The existing succession laws should
be unified, modified and amended to be applied to all Indians, regardless of
their religion, race, sex, caste, community or form of marriage.
In spite of all the recommendations towards the unification and amendment

of succession laws in India, there is no positive indication that the
government or the legislature is in a hurry to do anything. The contrary

seems to be true. The unification of Hindu law, which was ahead of its time
when it was enacted in the fifties, was the last major development in Hindu
succession law in India.211 There has been no change in the other succession
laws applicable in India. From a Western point of view, such a scenario is
very unfavourable for females and much has still to be done to achieve
complete equality between sexes in India.
At first glance the Indian model of concurrent personal legal systems seems
to be a perfect solution for the pluralistic society in South Africa. Although
India has a religious majority (the Hindus), they opted for a secular system
that gives recognition to various personal systems such as Hindu law,
Muslim law, Jewish law, Christian law and other personal legal systems.
However, if one delves deeper into the authorities, a totally different picture
emerges. The recognition of different legal systems in India is a complex and

difficult system of law, and conflict between the various systems is not an
unfamiliar phenomenon. This problem has resulted in numerous and
208Pradhan n 205 above at 251-254; 328. See Rautenbach n 20 above.

209Pradhan n 205 above at 336-339.
210
Wat 339-341.
211
Except for the state laws referred to in n 34 above and the Hindu Succession (Amendment)
Act in 2005.
continued cries from academic wnters, the judicature, and politicians for a
Uniform Civil Code.
The plurality of personal laws is also detrimental to the hereditary position of

females in India. Although the Indian Constitution guarantees equality and
prohibits discrimination on the ground of sex, it is clear from the writings of

academics and decisions in the courts, that discrimination against females is
still prevalent in India today. Krishna Iyer212remarks as follows:
The mythis that equality of the sexes is guaranteed by the State. The truth
is that inequality and indignityvis a vis Indian sisterhood are writ so large
as to mar the veracity of fundamental rights.
He is of the opinion that it is the responsibility of the judges and the
legislature in India to participate more actively in the eradication of gender

discrimination.213
Pradhan criticises the various laws of succession applicable in India. After

an analysis of the nine major succession laws in India, including succession
in terms of the Indian Succession Act, he concludes that legislative reform by
means of a Uniform Civil Code should strengthen secularism and the
unification of India.
Against this background, the phenomenon of a plurality of succession laws in

India is not to be recommended as the ideal model for the South African
setting. Such a model, as we have seen in South Africa with its dual system
of succession laws, has its own unique problems and difficulties, especially
with regard to the interpersonal conflict of laws and also the legal position of
females. The recommendations of the South African Law Reform
Commission and the Constitutional Court would be to harmonise or unify the
common and customary law of succession, or rather to enact new unique
intestate succession laws, applying to all South Africans equally.
212VR Krishna Iyer 'Woman and the law - a plea for gender justice'1984 IslamicCLO 251.
mId at 256-257.
214Pradhan n 205 above at 240-249.

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Institute of Foreign and Comparative Law

succession and the customary law of succession) recently came under

scrutiny in Bhe v Magistrate, Khayelitsha (Commission for Gender

Succession Act 81 of 1987 and in effect unified the common and

succession laws by means of legislative initiatives. Since the envisaged

position in otherjurisdictions with that of South Africa. Legal academics

Africa shows remarkable similarities to that of India and, since the

worthwhile to compare the succession laws of India in order to determine

whether something similar would benefit South Africa. Besides focusing

various succession laws in particular.

Professor of Law: North-West

equitable approach to this area of law.5

regulated in terms of the ill-fated Black Administration Act7 in which section

Cronje Die Suid-Afrikaanse erfreg (6ed 1990) 21-89.

of Rights available at: http://www.mvlexisnexis.co.za 20 June 2006.

evidence will have to be led regarding the existence or non-existence of a

Another problem was the judiciaries' awareness of the constitutionally

rights of indigenous communities by adapting their laws to typically western

primogeniture, as well as section 23 of the Black Administration Act,

unpopular with or unknown to most indigenous communities.15

'Customary law: the way forward'.

The recent developments resulted in the creation of a universal system of

Further development in the succession laws of South Africa is foreseen. Both

envisaged legislation has not yet materialised, it is worthwhile to compare the

approach would benefit South Africa.

customary must be applied, but the testator himself.

legal system characterised by remarkable plurality of laws'.

At this stage it is important to note that an estate in India has to be distributed

Marriage Act.25 Succession laws that governed succession of Muslims26 and

HINDU LAW OF SUCCESSION

any writer or the Indian government.

introduced key changes to classic Hindu law of intestate succession. The

Hindu Succession Act

Codification of the Hindu law of succession

Application of the Hindu Succession Act: who is a Hindu?

persons. In terms of section 1 of the Act it is applicable to all Hindus in

including converts and reconverts to these religions.

Although the Hindu Succession Act applies to India (with certain

exceptions), it is a personal law Act as opposed to the Indian Succession Act,

Modifications to the classic Hindu law of intestate succession

coparcenary property, and succession of separate property. Only males are

succession, it can also be classified

revolutionary change to the Hindu law of succession by affording a female

survivorship.49 The share of the deceased coparcener who succeeds, is

coparcenary property with him. A and B continued with the coparcenary.

As specified in Class I of the Schedule.

juridical behaviour (1999) 123, 130-136.

participate in the coparcenary.

A Hindu male can always side-step the effects of section 6 by bequeathing

According to Sivaramayya, the continuance of the Mitakshara

practices against female heirs. If D's share of in the coparcenary property, in

The characteristics of the Mitakshara coparcenary, namely, community

In 2005, section 6 as discussed above, was replaced by a new section 6,

Limited woman's estate

right to claim title to the property regardless of whether she is in physical

category inherit simultaneously and to the exclusion of other beneficiaries.

• Heirs of the mother: The beneficiaries in this

simultaneously and to the exclusion of other beneficiaries.

Inclusion of women as heirs

In terms of the Schedule to section 8 of the Hindu Succession Act, females

Although males and females inherit in equal share, there seems to be

Section 15(2) of the Hindu Succession Act.